Opinion: In Defense of Towing Company Billing Practices

By Michael McGovern

ttorney

“I’ve been cheated!,” “Add it up again!,” “What a rip-off!” More complaining from disgruntled Democrats? No, those are remarks frequently attributed to trucking company executives referring to towing and storage bills on accident recoveries.

It’s an unfortunate fact that truck accidents occur every day. Often, a truck and trailer will overturn or run down an embankment, strewing freight all over the highway. The wrecked truck, trailer and load must be recovered from the scene and removed to a secure storage area.

I have represented automotive towing companies across the nation for almost 20 years. Despite the “horror stories” that appear from time to time in this publication and others, claiming that some “pirate” towing firm has held a wrecked rig “hostage” for an outrageous fee, it has been my experience that the vast majority of heavy-duty towing companies charge a fair and reasonable rate for services rendered and are wholly within their rights in maintaining possession of the accident vehicles until their bill is satisfied.

The two questions that usually arise concerning truck accident recovery are: “Who called you to tow my truck?” and “Where did you come up with that invoice price?”

With regard to the first question: If the driver has been removed from the scene and the carrier has no prearrangement for towing service in the locality of the accident, the investigating police agency must make arrangements for the removal of the wreckage.

Some law enforcement agencies will endeavor to obtain the phone number of the carrier’s maintenance director and make an inquiry about vehicle recovery. But if a roadway is blocked, or the accident occurs some distance from the company headquarters, it is unlikely that the investigating agency will take the time to determine the desires of the carrier. Their top priority, of course, is to get the road cleared in the most expedient manner.

Every law enforcement agency has a system of dispatching wreckers or tow trucks to recover wreckage. Many police departments utilize a rotating list of pre-qualified towing companies. In other jurisdictions, one towing service is provided with an exclusive franchise through a competitive bid process.

With regard to service fees charged: If the towing firm is operating under a contract bid, it is obligated to abide by the rates contained in its contract. Some government agencies that utilize a rotating list also regulate the rates for services charged by the participating towing firms. If a carrier questions the rates charged, it should make an inquiry of the local police agency to determine if there is a contract or regulated rates, and if so, if the rates charged are in compliance. If the rates are in line, any challenge to the bill would likely prove unsuccessful.

In the absence of rate regulations applicable to accident scene recovery, the responding towing firm is permitted to charge a reasonable fee commensurate with fees charged for similar emergency services in its geographic area.

Keep in mind that in most states the towing firm has a distinct advantage in billing disputes. The towing firm has a legal right to keep possession of the truck and trailer, and sometimes the cargo, in order to secure payment of the reasonable value of services rendered, including retrieval, towing and daily storage fees. And the total amount of daily storage fees can quickly escalate while a carrier and/or shipper argues with a towing firm about a bill — or argue with each other about their proportional liability.

When a bill is disputed, a carrier/shipper desiring to retrieve its equipment or salvageable cargo from a storage facility has a couple of options. It can pay the asserted bill, then later file suit to recover the amount of the alleged overcharge. Alternatively, the carrier/shipper can obtain a writ of possession by posting a bond with the appropriate court in the amount of the total bill. The court will then order the release of the equipment and/or cargo. Later, following a hearing, the court will determine whether the charges conform with the contract or rotation regulation rates or, in the absence of regulated prices, whether the rates charged are fair and reasonable under all the circumstances. The sum awarded to the towing company for its services, plus interest, will be paid out of the bond posted with the court. The court can also allocate the percentage of the bill chargeable to each entity: the carrier, the trailer owner/lessee and the shipper.

Of course, there have been documented instances in which rogue towing firms have attempted to take advantage of a carrier’s plight. In some cases, the conduct rises to the level of fraud. Fortunately, in my experience, those instances are few and far between. Furthermore, there are adequate legal remedies available to the affected carriers and shippers to minimize the impact of such conduct by those renegades.

Michael McGovern is a partner in the law firm of Ayres & Parkey, in Knoxville, Tenn. He is the former general counsel to Towing and Recovery Association of America and represents towing businesses throughout the country.